THE HONOURABLE MR JUSTICE NICKLIN Approved Judgment
MBR Acres Ltd -v- McGivern
“… one can see that, assuming these statements were part of the essential decision in Cameron , they do not affect the validity of the orders against newcomers made in Gammell (whether interim or final) because before any steps could be taken against such newcomers, they would, by definition, have become aware of the proceedings and of the orders made, and made themselves parties to the proceedings by violating those orders ( Gammell [32])” [38] 68. I do not find it easy to reconcile a requirement of knowing breach of injunction, as a pre-requisite for becoming a “Persons Unknown” defendant by operation of the Gammell principle, with the earlier decision of the Court of Appeal in Cuciurean , in which the Court rejected any requirement of “ knowing ” breach. What was required, the Court of Appeal held in that decision, was notice or service of the relevant order, and that could be achieved by alternative service. 69. In Cuciurean , committal proceedings were brought against the appellant. He had not been named as a defendant in the underlying proceedings, but an injunction had been granted against “persons unknown”. The appellant had argued that, for him to be liable for contempt for breaching the “persons unknown” injunction, he had to be shown to have knowledge of its terms. This argument was rejected. Warby LJ gave the judgment of the Court of Appeal: [54] The Judge found that the service requirements of the March Order reflected an unimpeachable application by Andrews J of the Canada Goose guidance, and that those requirements were complied with. The Judge noted that neither Counsel had been able to identify any authority supporting the existence of any requirement of “ knowledge ” of the order, independent of the requirement that the order be served. He found it hard to see “ how there is space ” for the existence of any such requirement. He held that it was for the judge making the order to determine whether any and if so what order for service by an alternative means was appropriate. But he did not consider that the question of service could be “ altogether disregarded ” on an application for committal. He concluded that, despite the absence of any rule or authority to this effect, the right approach in principle was that “ provided the person alleged to be in contempt can show that the service provisions have operated unjustly … the service against that person must be set aside. ” [55] The complaint is that this involves an impermissible reversal of the burden of proof, requiring the appellant to prove a case for setting aside service on the grounds of injustice. The Grounds of Appeal assert that “ The correct test is whether there was good service or not, which is for the claimant to prove beyond reasonable doubt, including negativing any suggestion of injustice raised by the defendant. ” [56] This is a problematic formulation. It assumes that in order to establish “ good service ” a claimant must prove not only that what was done complied with the rules or the relevant Court order but also something more, including (if the issue is raised by the defendant) that proceeding on that basis is not unjust. As the Judge observed, there is no authority to support any such proposition. More than that, the proposition appears to be contrary to authority. The effect of the authorities was summarised by Lord Oliver in Attorney General -v- Times Newspapers Ltd [1992] 1 AC 181, 217-218 :
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